The sexual abuse scandal surrounding the Catholic Church has taken a new turn in recent weeks with calls for the Pope to be prosecuted for crimes against humanity. The Pope is due to visit the UK in September this year and some prominent campaigners and lawyers have argued that he should be arrested in the UK and prosecuted for his role in the cover up of sexual abuse. Alternatively, these campaigners and lawyers say they will seek an arrest warrant by the International Criminal Court on charges of crimes against humanity. The leaders of this campaign are eminent people and include Richard Dawkins, the well known Oxford Professor and, shall we say, atheist campaigner, Christopher Hitchens, another promiment atheist author and Geoffrey Robertson QC, a prominent British barrister who was a judge at the Special Court for Sierra Leone (see reports here and here and an article by Richard Dawkins here).

However, this attempt to get the Pope arrested and prosecuted in the UK has no chance of success as such an arrest would be in violation of international law. Likewise, the proposed prosecution by the International Criminal Court is most unlikely to get off the ground and similarly flawed as a matter of international law. However, these proposals raise some interesting issues of international law surrounding the status of the Pope, the Vatican and the Holy See.

The reason the Pope cannot be arrested and prosecuted in the UK is because he is entitled to Head of State immunity. Dawkins and Hitchens are not unaware of this problem. Apparently they have enlisted Geoffrey Robertson QC to provide an opinion stating that the pope is not a head of State and therefore not entitled to head of State immunity. Robertson elaborates on this point in a recent article in the Guardian. Robertson argues that the Pope is not entitled head of State immunity as a matter of international law because the Vatican is not a State. His arguments are simply incorrect. The Vatican has a tiny territory and a tiny population but it does fulfill the criteria for Statehood. As James Crawford puts it, in his authoritative work The Creation of States in International Law (2nd ed, 2006), p. 225, after detailed analysis: “it is clear that the Vatican City is a State in international law, despite its size and special circumstances.” The size of population or territory are irrelevant for the purposes of Statehood. What is important is that the entity possesses those criteria as well as the two other criteria for Statehood – which are: a government in effective control of the territory and independence (or what is called “capacity to enter into legal relations” in the words of the Montevideo Convention on the Rights and Duties of States 1935). The Vatican as a territorial entity does have a government: the Holy See which is headed by the Pope. As Crawford’s analysis makes clear, the Holy See has its own independent legal personality (about which more later on) and that personality predates the Statehood of the Vatican. However, the Holy See is also the government of the Vatican City State. More imporantly, the Vatican is independent of any other State. Its independence from Italy which is the State that could have had claims to control that territory is recognised in the Lateran Treaty of 1929. The preamble to the treaty speaks of:

“assuring to the Holy See in a permanent manner a position in fact and in law which guarantees it absolute independence for the fulfilment of its exalted mission in the world,”

and states that

“in order to assure the absolute and visible independence of the Holy See, it is required that it be guaranteed an indisputable sovereignty even in the international realm, it has been found necessary to create under special conditions Vatican City, recognizing the full ownership and the exclusive and absolute power and sovereign jurisdiction of the Holy See over the same”

“The notion that statehood can be created by another country’s unilateral declaration is risible: Iran could make Qom a state overnight, or the UK could launch Canterbury on to the international stage.”

But this misunderstands how States are created. Many States are indeed created by the unilateral declaration of one State. This is how colonialism in Africa and Asia ended. This is how the States in the Commonwealth achieved statehood. They were all granted independence by unilateral declaration – in many cases, by national Statutes – of the colonial powers. Independence means the right to control a portion of a globe without being subject to the legal authority of another entity. The way this is achieved in the case of territories previously under the control of another State, is by that other State renouncing the claims that it has to that territory.

But the independence and Statehood of the Vatican are not created solely by unilateral declaration but are also recognised by other States, indeed by most States of the world. The Vatican is a member of a number of international organizations, including the Universal Postal Union, the International Telecommunications Union and the World Intellectual Property Organization. Although the UPU is open to territorial entities which are not States (see commentary to Art. 1 of the UPU’s constitution), the only territorial entities that may be Members of the ITU and WIPO are States. In addition, the Vatican is party to many multilateral treaties including, the Convention on the Rights of the Child (yes that one) and the 1949 Geneva Conventions on the protection of victims of armed conflict.

So, since the Vatican is a State then the head of that State, the Pope, is entitled to head of State immunity under international law. This immunity is recognised by Section 20 of the UK’s State Immunity Act which extends to “a sovereign or other head of State”, the same immunities accorded to diplomats. These immunities are absolute in the case of criminal proceedings. In other words there are no exceptions to the immunity. The International Court of Justice’s decision in the Arrest Warrant Case (Congo v. Belgium) 2002 confirms that this type of immunity continues to apply even when it is alleged that the head of State has committed international crimes. So an allegation that the Pope may be responsible for crimes against humanity will not suffice to defeat his immunity. It should be noted that the immunity of a head of State from criminal prosecution in foreign States is there for very good reasons. In the first place, those State agents charged with the conduct of international relations are given immunity in order to allow international relations and international cooperation to continue to take place. Secondly, the immunity of foreign heads of States assures that just as States may not engage in regime change by armed force they may not achieve this end by criminal prosecutions either. It respects the fundamental autonomy of each State to determine who it is governed by.

Even assuming that the Vatican were not a State under international law that does not mean that the Pope will not be granted immunity from criminal process in the UK. First of all, the UK courts in determining the question of immunity will not be asked to determine whether the Vatican is a State under international law. Under Section 21 of the State Immunity Act, the question whether the Vatican is a State is to be resolved, conclusively, by the Secretary of State for Foreign and Commonwealth Affairs. So as long as the Foreign Office is of the view that the Vatican is a State, the Courts are bound to accept that. The State Immunity Act aside, deference to the executive on matters of Statehood is in line with longstanding case law of the English Courts. It is almost certain that the Foreign Office will certify that the Vatican is a State, as the US executive did in a case against the Vatican in the US. Britain maintains diplomatic relations with the Holy See and has an Ambassador with the Holy See. It may be argued that this is not quite the same as recognising the Vatican as a State – and it isn’t. The embassy is to the Holy See and not to the Vatican. Nonetheless, as far as I know Britain has not objected in the past to the Vatican’s claims to be a State nor has it, as far as I know, opposed the Vatican’s accession to treaties that are only open to States.

A second reason that the Pope will be entitled to immunity from criminal process in the UK even if the Vatican were not a State is because there is general acceptance of the international legal personality and in particular of the “sovereign” status of the Holy See. The relationship between the Vatican and the Holy See are complex. Crawford’s book referred to above, deals with this question very well. What is clear is that the Holy See as the central authority of the Catholic Church is not just the government of the Vatican. In addition, it has a special status in international law and has international legal personality which precedes the creation of the Vatican in 1929. What is important here is the nature of that international legal personality. Like the Sovereign Order of the Knights of Malta, the Holy See is deemed to have a sovereign status akin to Statehood. This includes possession of the immunities that States are entitled to. It may be significant that Section 20 of the State Immunity Act provides immunity for “a sovereign or other head of State.” Does sovereign in that context allow for entities like the head of the Holy See, the Pope, even if he were not a head of State? It may be interpreted in this way and should be. It could be argued the word “other” in that provision, militates against this interpretation. However, even if S. 20 does not allow for the immunity of Head of the Holy See, that would not preclude the argument that customary international law does.

The suggestion that the Pope could be indicted by the International Criminal Court will fail for similar reasons. Although the Vatican is not a party to the Statute of the ICC, the ICC will have jurisdiction over acts committed on the territory of States parties. But, even if these acts amounted to crimes against humanity – and that would be very hard to prove – the Pope would still be entitled to immunity as the head of a non-Party State. The indictment of Sudanese President Bashir is not a precedent here unless those mounting this campaign are able to get the Security Council to refer the case to the ICC. I have written on these issues at length on this blog and elsewhere so I won’t go into the details of the argument. However, the immunities of non-parties to the ICC Statute is recognised by Article 98 of the ICC Statute

So the campaign to get the Pope arrested has generated enormous media coverage but the legal analysis deployed in support is very weak indeed. Don’t expect to see the Pope in handcuffs anytime soon.

15 Responses

You say “the Vatican is party to many multilateral treaties including, the Convention on the Rights of the Child (yes that one) and the 1949 Geneva Conventions on the protection of victims of armed conflict”

I know that the Holy See, and not Vatican City, is party to the CRC but according to the UN Treaty Collection ‘Vatican City State’ has apparently acceded to other multilateral treaties, like one on road transport from 1949, for example.

The whole relationship between the Holy See and Vatican City seems to be awash with ambiguity, especially when it comes to their position at the UN.

It doesn’t seem right however to equate recognition of Vatican City with that of the Holy See, which has traditionally been viewed as a non-State entity long before the invention of Vatican City State in 1929.

If the Holy See truly has sovereignty over an actual city State in the form of Vatican City, and this is accepted internationally, then Vatican City and the Catholic Church allegedly have an equally legitimate claim to Statehood as any other sovereign nation, and theoretically the same justification for full admission to the UN general assembly.

Does that strike anyone else as utterly preposterous? The Catholic Church is not a State, maintaining the pretense that it kind-of-is and kind-of-isn’t is a contradiction which manipulates international law to elevate one religion to a position of immunity above all others.

Allegedly, recognition of the Holy See, and the ridiculous decision to allow Vatican City State to sign international treaties, has bestowed the Catholic Church, a religion, with their own little country.

Yet, I still think that the recognition of Vatican City State is not as rock-solid as it may appear. It seems that the ability to sign a few treaties does not confer acceptance as a serious nation state (hence the lack of a seat on the UN G.A.); and if the Foreign Secretary was forced to certificate the legitimacy of Vatican City State it only serves to illustrate the ridiculous implications of such a claim.

The whole edifice of pretend statehood could be rejected if the 1929 treaty was declared an illegitimate basis for recogntition. Just because this charade has been allowed to go on for 70 years does not impute that it is correct.

As you point out, this doesn’t clear up the matter of whether the Pope is entitled to regular diplomatic immunity under the auspices of the non-State entity of the Holy See, but it does appear to represent a stupid contortion of the law to serve the purposes of religious prejudice.

The claim that a “head of a non-Party State” is entitled to immunity before the ICC does not square with jurisdiction of the ICC under articles 12(2)(a), 13-15, 25(2) of the Statute of the ICC, much less article 27(1) (which expressly denies immunity for any official or head of state). What may be problematic is finding responsibility under article 25(3)(c) or (d), because, unlike responsibility under customary internatonal law, aiding and abetting after the fact is not covered. Does article 28 apply nonetheless? If so, article 28(2) with respect to civilian leaders (unlike customary international law with respect to civilian or military leaders) limits responsibility to a circumstance where the leader either “knew or consciously disregarded information which clearly indicated, that the subordiantes were committing or about to commit” relevant crimes within the jurisdiciton of the ICC, e.g., crimes against humanity under article 7. Leader responsibility might pertain, but the extremely limited definition of crimes against humanity set forth in article 7 creates its own problems. Unlike customary international law, article 7 sets limits such as (1) widespread or sysematic [which might be met here], (2) “attack” [which might be interpreted to include attacks on children of a sexual nature], and (3) “pursuant to or in furtherance of a State or organizational policy to commit such attack.” The latter form of limitation of the reach of ICC jurisdiciton (not a part of customary internaitonal law) could be problematic, e.g., where there is no such “policy” to commit sexual abuse of children but merely a “policy” to cover up attacks on children and their pesecution (which might be reachable otherwise under customary international law regarding crimes against humanity). Surely the jurisdiction of the ICC is quite limited, as opposed to the jurisdicitonal competence of all states to exercise universal jurisdiciton with respect to crimes against humanity under customary international law. Whether the U.K. prefers to abandon recognitions in Pinochet and find “immunity” that does not exist as a matter of customary internaoitnal law (but see the ICJ majority opinion re: Belgium and the Congo) is up to the U.K., but their duty shifts then to a duty to render an accused or to extradite, since the customary duty of states aut dedere aut judicare is in the alternative.
Jordan J. Paust

p.s. article 98(1) merely refers to a situation where the state requested to render an accused to the ICC would be acting “inconsistently with its obligations under international law with respect to the State or diplomatic immunity of a person….” The obligation of the U.K. aut dedere aut judicare is to either hand over or initiate prosecution and, as the IMT at Nurembeg, the IMT for the Far East, and the ICTY in Milosevic, the U.N. General Assembly when adopting the Principles of the Nuremberg Charter and Judgment, etc. have recognized, there is no head of state or other official immunity for international crimes. Even the ICJ recognzed that there is no immunity for a sitting official in an international criminal tribunal. All relevant international criminal law treaties and instruments recognize responsibility for any person who commits a covered crime and several, including article 27(1) of the Statute of the ICC, recognize nonimmunity for heads of state and other officials. The preamble also affirms that relevant crimes “must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing internatoinal cooperation,” while also recognizing the determination “to put an end to impunity” and “the duty of every State to exercise its criminal jurisdiciton over those responsible for inernational crimes.”
Jordan J. Paut

You are right to point out that it is the Holy See that is party to some treaties and the Vatican party to others. The relationship between the two is confusing. However, the most important point is that the Vatican is party is treaties and a member of international organizations that are only open to States. In any case, as I said, even if the Vatican is not a State, the Holy See (as a separate entity) has a special status in international law which gives it rights that are in some cases analogous to sovereign rights. You are right to point out that this situation gives the Catholic Church a privileged position in international law. No other religious organization has such a status. This is of course an accident of history but history has conferred that privilege status on the Holy See as the central administration of the Catholic Church.

Jordan, I agree with much of what you have to say about the problems with finding responsibility under the ICC Statute. However, I disagree with your points on immunity. My points about the immunity of officials of non-party States with respect to the ICC are fully developed in my 2004 American Journal of Int. Law article on “Immunities and the ICC”. The key points that support my view that the heads of States of non-parties are entitled to immunity from arrest by States at the behest of the ICC are based on the following points. First of all, this is what Art. 98(1) of the ICC Statute says. It is difficult to think of what else Art. 98 could mean. That provision was put in precisely to allow for the immunity of non-party States. Secondly, even apart from Art. 98, t is essential to remember that the immunity of officials (including the head of State) of States is a right of the State. Other states cannot remove that right by a treaty to which the affected State is not a party. This would simply be contrary to the law of treaties. Thirdly, I do not agree that there is no immunity before international criminal tribunals. To say that there is immunity before national courts but not before international courts is to say that 2 or 3 States can agree together to do what they cannot do individually. The suggestion is that they can enter into a treaty to set up a tribunal with the power to prosecute leaders of other States. This would be to allow for the rights of States to be taken away by a treaty to which they are not party to. Immunity does not exist only where the instrument that removes the immunity is binding on the relevant State.

Dapo: But the ICJ expressly recognized in para. 61 that certain international criminal courts may have jurisdiction. “Examples include” the ICTY, the ICTR, “and the future International Criminal Court …. The latter’s Statute expressly provides, in Article 27,” and so forth. We disagree whether nonimmunity before an international criminal tribunal like the IMTs is only treaty-based [there were no treaties granting nonimmunity with Germany or Japan, and neither Yugoslavia nor Rwanda expressly consented to nonimmunity] or customary.
Jordan

Unfortunately, the ICJ did not say much. It said ‘an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction’. The issue is whether the ICC has personal jurisdiction over ministers/heads of state of non-state members of the ICC.

The ICJ’s statement is para. 61 of the Arrest Warrant case is overly broad. Yes certain Statutes remove immunity but the question is for whom? My argument is that the immunity is removed only for those who are bound by the instrument that removes the immunity. In the case of the ICTY and ICTR that would be all States since the instrument removing the immunity is a binding Security Council decision. In the case of the ICC, immunity is removed for parties. The position regarding the Nuremberg and Tokyo tribunals are more complicated. Arguably, both were created by States exercising the sovereign powers of Germany and Japan respectively.

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Those people who wanna make the arrest campaign are looking to be famous and make an advertisement to their person.
And surely making a campaign on the Pope would be a good deal to be famous and make propaganda…

Concerning the sex abuse, well at the end we are not Gods. We do make mistakes, no one is without sins, and the person who abused should be punished.

Thank you for your article. I’ve been following the proceedings to have the pope arrested upon his visit to England, and I appreciate your blog explaining (or trying to explain) that the Vatican or the Holy See and it’s pope is in some way or another a head of state and therefore immune.

They sure know what they’ve been doing. The Roman church has been working the system with various international govt’s for centuries. Popes over the centuries have been in cahoots with the world’s most powerful leaders – including Hitler. It comes as no surprise to me that the Holy See or whoever they are – “episcopal corporation” – has established a legal toe hold for it’s own protection and survival.

No other church in the world is as established as the Roman Church and I think it’s completely preposterous that a religeon – yes that’s all they are…. just a religeon – has been protecting itself from all legal standpoints because they knew the mistreatment of children at the hands of their priests and bishops was coming. They’ve known all along.

We all fail to forget that the Roman Church is called the “Roman” church because it is the only direct link to what was once known as the Roman Empire. They wrote the book on state building – so it comes as no surprise that some kind of stately status was so carefully prepared.

Whether the pope is ammune to persecution or not does not change my mind that he is evil and the Roman Church is evil. I pray for it’s complete and utter downfall.

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Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Boards of the European Journal of International Law and the American Journal of International Law.